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Volume 5
Chapter 4 Deciding on Criteria for Assistance: the Section 72 Statement of Assistance

Introduction

4.1. Section 72 of the 2006 Act requires local authorities to make a public statement describing the circumstances in which they will provide assistance and what form that assistance will take.

4.2. The statement of assistance is at the core of the new approach to assistance in the Act. It shows to owners how their local authority has chosen to use the flexible powers that the Act provides, in some cases for the first time. It should be comprehensive enough for owners to know how they will be treated in a range of circumstances but clear enough to be understood without heavy reference to technical annexes or accompanying documentation.

4.3. The statement of assistance should be the central co-ordinating document setting out the services and financial assistance the local authority intends to make available to address the issues identified in the local housing strategy in relation to private sector housing in the area.

4.4. The statement performs a number of key roles. These are:

• A tool for giving information to owners about what services and financial assistance they can expect
• A governance tool for use in any review about how an owner's request for assistance was dealt with
• A political tool in its demonstration of transparency and accountability to the electorate in respect of the assistance the local authority intends making available
• A practical tool to help service providers within and outwith the local authority understand their role
• A tool to use as a baseline in the monitoring and evaluation of your processes and procedures as identified in your statement.

4.5. The statement of assistance should therefore inform the public and make the local authority accountable to electors. Authorities can expect the statement of assistance to be a point of reference for anyone - including the Scottish Public Services Ombudsman and auditors as well as individual owners and others - who wishes to assess whether individual decisions have been taken fairly and are consistent with local authority policy.

4.6. The Act does not specify any timescale for the production of statements under section 72, but authorities are expected to have a statement in place within [the timeframe of the transitional period] of the commencement of section 72 (see "Policy" section of guidance - volume 1, chapter 1). Local authorities should publish their section 72 statement at the point at which they implement the 2006 Act powers and cease to use 1987 Act powers.

4.7. The Act allows for the statement to be revised or replaced, and this allows the flexibility to adapt it to changing circumstances and priorities.

4.8. Statements should be subject to public consultation before implementation, in line with the Scottish Government's National Standards for Community Engagement ⁴.

4.9. The main aim of this section of the guidance is to assist authorities to construct their statement. It does this by suggesting:

(a) the factors which are likely to influence their Scheme of Assistance (and, therefore, their statement of assistance), and

(b) a possible model framework for the areas an authority's statement of assistance should cover.

4.10. Other parts of the guidance cover these factors and areas in more detail.

Factors Influencing Access to Assistance

Legal provisions

4.11. The following is a note of legislation that may affect the statement of assistance. It is not an interpretation of the law and where necessary local authorities should check the relevant statute directly.

Housing (Scotland) Act 2006, Part 2 (sections 71-97)

4.12. This covers the powers and duties of local authorities in relation to the Scheme of Assistance.

4.13. Specifically in relation to an authority's statement of assistance, section 72 requires local authorities to prepare and make publicly available a statement of:

(a) the criteria they will use to determine whether to provide assistance in particular types of case and what form that assistance will take,

(b) any circumstances in which they will introduce an approved expense limit for work funded by grant or loan, and

(c) the rate of interest or the rate or amount of other charges payable on a standard loan or on the repayment element of a subsidised loan.

4.14. Section 72(c) above applies only to any loans made by a local authority using the powers in the Act, and so does not apply to loan products from other sources.

4.15. Other parts of the 2006 Act of which particular account needs to be taken when considering the statement of assistance are Part 1 - Standards, Part 7 - Repayment Charges and Part 10 - General and Supplementary Provisions, including section 185 on equal opportunities. Part 1 of the Act covers a number of key areas, guidance on which is provided as part of the Scottish Government's overall guidance to the 2006 Act. Amongst other things, the authority's policies on the use of its enforcement powers in Part 1 will have a direct bearing on the statement (see volumes 2 and 3).

4.16. Regulations laid under the 2006 Act will:

• Make grant mandatory for adaptations, excepting the provision of additional living accommodation
• Apply a minimum percentage to mandatory grant for standard amenities and adaptations - this to be 80% of the cost of the eligible works, and 100% for applicants in receipt of specified income replacement benefits
• For adaptation works not attracting mandatory grant, prescribe mandatory advice and information to assist the applicant to fund the work. Such assistance will, in particular, route applicants to advice on lending options, where this is sought.

Housing (Scotland) Act 2001

4.17. Paragraphs 92(4)(f) and (g) of the Act give local authorities the power to:

• provide or arrange for the provision of advice, training or other services and facilities
• make available the services of staff of the local authority.

Housing (Scotland) Act 1987

4.18. Some provisions of the 1987 Act that will continue, for example relating to Demolition and Closing Orders and Compulsory Purchase Orders, could have a bearing on when assistance might be given and so should be taken into consideration. This Act also provides the framework for homelessness legislation, which is particularly relevant to the assessment of the circumstances of disabled people applying for assistance with adaptations.

Tenements (Scotland) Act 2004

4.19. This Act modernises the law on tenements and includes the introduction of a statutory Tenement Management Scheme which acts as a default management scheme for all tenements and flats in Scotland, providing a structure for the maintenance and management of common parts if this is not provided for in the title deeds or if the provisions in the deeds are defective. Where the title deeds are silent on matters of decision making the Scheme provides that the owners in a tenement should make decisions by majority vote. The Act also includes powers to appoint and dismiss property managers.

4.20. Problems with common areas in some properties may stem from misunderstandings about responsibilities. The scope for problems to be resolved through the Tenements Act provisions should therefore be considered in drawing up the section 72 statement.

4.21. The Act formed the third and final part of the programme of property law reform and followed on from the Abolition of Feudal Tenure etc. (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003.

Anti Social Behaviour etc. (Scotland) Act 2004

4.22. Part 8 of the Act covers the statutory registration scheme for private landlords. Consultation with colleagues dealing with registration and also with the voluntary accreditation of landlords may influence when and how assistance should be given to landlords.

Equalities legislation

4.23. In developing your Scheme of Assistance and statement of assistance, account must be taken of legal equalities duties and in particular those embodied in the separate Disability, Race and Gender Equality Duties. Authorities may find it useful to consider their own schemes and equality strategies.

4.24. Local authorities must demonstrate how they will eliminate unlawful discrimination and promote equality of opportunity and good relations. In particular local authorities will need to build in an equalities impact assessment as part of the development of their Scheme of Assistance and statement of assistance. Whilst there are legal requirements to cover disability, race and gender, the Scottish Government promotes a six-strand approach to equality impact assessment, to also cover age, religion and belief, and sexual orientation.

4.25. In developing their Scheme of Assistance and statement of assistance, local authorities should be mindful of the legal requirements to consult and involve people from diverse backgrounds. Again particular attention should be given to ensuring disabled people and people from minority ethnic backgrounds are involved. However, in terms of good practice, local authorities should try and ensure people from other backgrounds are included in their consultation.

Social Work (Scotland) Act 1968

4.26. This Act places a duty on local authorities to promote social welfare by providing advice, guidance and assistance on a scale appropriate for their area. Section 12A contains a duty to assess people who appear to be in need of community care services and for whom the local authority must or may provide such services. The local authority, having regard to the results of that assessment, must then decide whether the needs of that person call for the provision of services.

Chronically Sick and Disabled Persons Act 1970

4.27. If a person being assessed under the Social Work (Scotland) Act is found to be disabled, the local authority must make a decision as to the need for any service identified in section 2(1) of the Chronically Sick and Disabled Persons Act 1970. If a need for such a service is established, the authority must make arrangements to meet it.

Children (Scotland) Act 1995

4.28. This Act introduced a legal framework for assessment, services and support to children with - or affected by - disabilities, and their families, with the underlying principle that services are designed to minimise the adverse effect of the child's disability while enhancing their opportunity to lead as normal a life as possible. There is interplay between this Act and the 1970 Act.

4.29. Other relevant legislation relevant to community care provision includes:

• National Health Service and Community Care Act 1990
• Community Care and Health (Scotland) Act 2002
• Disability Discrimination Act 1995
• Disability Discrimination Act 2005
• Disabled Persons (Services, Consultation and Representation) Act 1986
• Housing (Scotland) Act 1987 (see para. 4.18 above).

Local Government (Scotland) Act 2003

4.30. Part 3, relating to the "Power to Advance Wellbeing", gives wide general powers, including (under section 20(2)(b)) the power to give financial assistance to any person. Use of this power should be considered if there are circumstances that the authority wishes to provide for in its statement of assistance that are not covered or precluded by another specific statutory power.

Data protection requirements

4.31. The local authority must ensure at all times that its processing of personal data complies with data protection and human rights legislation. For example, the authority may wish to seek an applicant's permission to use other information available to the authority to check the information in the application, such as information on residence and property ownership held in electoral and council tax records.

Financial services legislation

4.32. Under the terms of the Scotland Act 1998, legislation governing lending, financial services, consumer credit and related matters is reserved under UK legislation. There is a range of such legislation and related rules. Details of how it affects the provision of financial assistance under the Scheme of Assistance are given in chapter 3 (Financial Assistance). Local authorities will want to consider carefully the implications of this legislation when they develop their criteria for making financial assistance available to home owners.

Legal precedent

4.33. Due account should be taken of relevant legal cases, for example on meeting the assessed needs of a disabled person.

The need to offer mandatory assistance

4.34. Mandatory assistance - not necessarily grant assistance - will be required following any work notice issued by the local authority, whether or not as part of a Housing Renewal Area. Consideration will therefore need to be given to the expected level of such activity and the resource implications. This is considered in more detail in chapter 3 of volume 1 on Setting the Local Strategy.

4.35. Mandatory grant assistance will be required for works to provide adaptations or standard amenities for a disabled person (see paras 3.224 to 3.233 in Financial Assistance chapter). The Housing (Scotland) Act 2006 (Scheme of Assistance) Regulations 2008 prescribe a minimum grant level of 80% for the cost of eligible works, or 100% for owners in receipt of certain income replacement benefits.

4.36. Mandatory assistance (not necessarily financial) must be provided in respect of work to reinstate a property which has been adapted, and in respect of works to meet a disabled person's eligible assessed needs for adaptations not covered by mandatory grant (see paras 3.240 to 3.243 in Financial Assistance chapter).

Local authority's Local Housing Strategy

4.37. You will be required through section 10 of the Act to look strategically at how you will implement Parts 1 and 2 of the Act. This should be detailed in your Local Housing Strategy ( LHS), and therefore should be the starting point for the statement of assistance. The private sector housing issues and priorities identified in the section 10 statement should be clearly reflected in the statement of assistance. While the section 10 statement will look at private sector housing issues in your area at a strategic level, the section 72 statement should have more of an operational focus and will cover in much greater detail the specific circumstances likely to attract particular forms and levels of assistance.

4.38. It may be that an authority's current LHS does not contain a sufficiently full picture on which to build a statement of assistance. If this is the case, the authority should not delay its statement of assistance until after its next LHS submission in 2009. It would be sensible instead to develop the LHS thinking on the private sector and the statement of assistance in parallel so that the statement can be finalised and adopted, and then review the statement later after the full LHS process has been completed. The scope provided in the Act to review or replace the statement means that it does not have to be tied to the same timescale as the LHS process.

4.39. The statement of assistance should be developed in the light of an assessment of the risks and wider consequences of not addressing the problems identified in the LHS. Examples might include:

• the impact on a local community if action is not taken to address poor housing in an area of urban decline economy
• the impact on the local economy if action is not taken to address poor quality student housing in a university town
• the impact on the sustainability of small communities if families leave rather than repair their property and remain in the area
• the impact on community cohesion if action is not taken to address the prevalence of poor housing owned by particular groups of people in the community.

Monitoring and evaluation

4.40. It is essential when drafting both the section 10 and section 72 statements that forethought be given to the criteria with regards to the strategic commitments in section 10 and how they will be measured through the section 72 statement.

4.41. It will be necessary to think about what to measure in the section 72 statement and how this will be done. There is a variety of assistance available to the owner as a result of the powers in the Act. Some of the assistance taken up by the homeowner will be fairly straight forward to record while other forms of assistance, for example some of the intangible services delivered through the one stop shop may prove more challenging. However any recording and ultimate monitoring and evaluation of this information should endeavour to be able to justify the ongoing resourcing of the Scheme of Assistance service.

4.42. For example, some questions you may wish to be able to answer are:

• As a result of the advice, did the homeowner move onto a positive destination?
• Did they seek to carry out work on their property?
• Was the work ultimately carried out?

4.43. By building a picture of the forms of assistance given to individuals, it can help to evaluate how appropriate and efficient the design of the processes are and ultimately how they are contributing towards the condition of the private housing stock in your area.

Local priorities

4.44. Local priorities are likely to influence the nature of a local authority's statement of assistance. There may have been long-standing local priorities for addressing need in the private housing sector, some of which will have been reflected in the outputs from the authority's expenditure of Private Sector Housing Grant provided by the Scottish Government. Where, for example, dealing with common works has been and is to remain a local priority, this may well continue to figure highly in the authority's statement of assistance, although - as indicated in the guidance on financial assistance (chapter 3) - this does not necessarily equate to providing grant.

4.45. Continuing to prioritise certain areas of activity does not necessarily mean that works will be funded in exactly the same way, given the greater range of financial options available under the Scheme of Assistance. Authorities should be prepared to review historical priorities in the light of the new opportunities provided by the Scheme of Assistance approach. In considering which owners to prioritise for different types of assistance, local authorities should be aware of the greater importance of issues relating to capacity or otherwise to use equity in the property and factors such as attitudes and barriers to carrying out work.

4.46. The statement of assistance should include clear justification of the choice of priorities for assistance adopted by the local authority, and should demonstrate that the choice of priorities is aimed at achieving a longer term strategy rather than reflecting shorter term political decisions.

4.47. Any choice of priorities for assistance will lead to winners and losers and to perceptions of unfairness among owners. The statement of assistance, and any information summarising it, should tell owners how they can try to influence the choice of priorities if they want to see changes. This is likely to include contacting councillors and relevant officials. Other options will depend on what the most appropriate local mechanisms are - such as area community planning forums - for influencing housing strategy and policy.

Ministerial priorities

4.48. The main national priorities to take account of are:

• the repair of sub-standard housing
• promotion of the responsibility of owners to look after their property
• enabling older and disabled people to live independently.

4.49. The final priority listed above is to be partly reflected in the form of regulations governing the type and amount of assistance given in relation to financial assistance for disability-related works. Other relevant Ministerial priorities include the prevention of homelessness, which is especially relevant in the assessment of applications for assistance from disabled people.

The needs of owners

4.50. In deciding priorities for assistance, local authorities should:

• use appropriate consultation with owners, and well researched evidence where possible, to support greater prioritisation of one type of works over another and then to make a statement of compliance with applicable laws that such discrimination is not prohibited, for example, by the Disability Discrimination Act
• be clear about the circumstances in which it is the type of work being done, rather than the individual circumstances of the owner, which govern priority for financial assistance: for example, a person in receipt of income replacement benefits carrying out adaptation work may get priority assistance whereas other owners in receipt of the same benefits but seeking to carry out repair work may not get the same (or any) priority
• recognise the different access needs of people with disabilities who may need help navigating the process regardless of the type of work they wish to carry out. Consideration may need to be given as to the value of services such as Care and Repair in assisting with navigation through the process.

4.51. The diagram at Annex 3 at the end of this chapter illustrates a range of barriers that can prevent owners carrying out necessary repair works and the responses that the authority might deploy.

4.52. There should be a separately defined section within the statement of assistance covering assistance for disability-related works. The guidance provided in chapter 3 on Financial Assistance should prove helpful in this regard.

The need to assist more people than with grant alone

4.53. The statement of assistance should reflect a medium and longer term aim to generate increased demand for non-financial assistance, such as from owners wanting advice on finding a reliable builder. Authorities should consider what impact they can have by maximising the use of non-financial assistance to owners who will not traditionally have considered "the council" as a source of assistance. This will include finding the most effective way of delivering such assistance so that it is accepted and used by such owners.

The need to make better use of resources

4.54. Resources will clearly be a major factor influencing the amount and type of assistance provided by local authorities, who will need to take into account:

• funding available from national and local sources
• staffing available including mapping current and future skills needs
• scope for engaging external resources, including commissioning contractors, delivery partnerships with the public, voluntary and private sectors, third party services to which customers can be referred
• the way the availability of these resources is expected to change over time.

4.55. The statement of assistance should be based on a consideration of what type of assistance is cost effective in meeting objectives, including consideration of what the lowest cost options are where a number of potentially effective approaches may exist.

4.56. The statement of assistance should spell out the circumstances when financial assistance which might otherwise be offered would be either postponed until a later date or be deemed unavailable in the event of resources running out.

Q. Is this a fair summary of the issues likely to influence the identification of priorities within a statement of assistance?

A Model Framework for a Section 72 Statement of Assistance

4.57. The guidance below suggests model headings for a typical section 72 statement of assistance. It is intended to be helpful rather than prescriptive. Authorities should consider having a main section dealing just with house condition issues and a second statement covering disability-related works. This reflects the importance of authorities having a separate approach to house condition works and disability-related works respectively.

4.58. The guidance should be considered alongside the detailed guidance contained in the earlier chapters covering information, advice, practical assistance and financial assistance.

Vision

A brief description of the outcomes the local authority wants to see from its Scheme of Assistance.

Strategy

The relevant sections from the local housing strategy should be included here, highlighting key aims and objectives, key stakeholders, identified resources and timescales within which the local authority expects to see outcomes achieved.

Initial access to assistance

Basic information about how to make first contact with the local authority. It may be appropriate to include here any pledge the authority wishes to make about quality of service.

HOUSE CONDITION WORKS

Types of assistance

This should list all available forms of assistance, covering information, advice, practical assistance and financial assistance, giving details under each heading as to who can get what assistance in what circumstances.

Local authorities should consider having a flow diagram to explain ways in which the different forms of assistance may relate to each other, if this helps make the process clearer.

Priority works for financial assistance

A description of the works deemed a priority by the local authority.

Priority circumstances for financial assistance

Any additional personal circumstances influencing levels of priority for access to assistance, on the assumption the owners in question are undertaking priority works.

Application process for financial assistance

A detailed breakdown of the process as covered by sections 74-89 of the Act.

Appeals process

Details of process to be followed by applicants aggrieved at the outcome of their request for financial assistance.

When enforcement powers will be used

The circumstances detailed here should include advice for those wanting to know when the local authority would consider taking enforcement action and how they can ask for the enforcement powers to be used against other owners, for example in communal blocks. It may be appropriate to cross refer to information on options for owners to enforce action themselves on the basis of their title deeds, the provisions in the Tenements (Scotland) Act etc.

When assistance might be withdrawn

The circumstances in which offers of financial assistance may be postponed or not made at all due, for example, to lack of funds or any unforeseen circumstances etc.

ADAPTATIONS AND STANDARD AMENITIES FOR DISABLED PEOPLE

Types of assistance

This should list all available forms of assistance relevant to disability-related works, highlighting any specific leaflets, advice sources and schemes offering practical assistance ( e.g. Care and Repair), giving details under each heading as to who can get what assistance in what circumstances.

Local authorities should consider having a flow diagram to explain ways in which the different forms of assistance may relate to each other, if this helps make the process clearer.

Assessment of circumstances

Details of the assessment process for requests for financial assistance for disability-related works, including any simpler works not requiring social work (normally occupational therapist) input, and the circumstances in which a community care assessment may be required.

An indication of the type of circumstances, if any, in which alternative options (such as assistance with house purchase) may be discussed with the applicant.

Priority works for financial assistance

A description of the works which are subject to mandatory grant and of the amount of grant available, and any other disability-related works which could attract (discretionary) grant.

Explanation of what level of priority will be needed in order to attract grant, if such a priority system is in place.

Details of the circumstances, if any, in which the social work department may be able to offer (financial) assistance.

Details of the mandatory advice and information provision (for example referral for advice on lending options) for works - such as the provision of additional living accommodation - not attracting mandatory grant.

Priority circumstances for financial assistance

The statutory arrangements for automatic payment of 80% minimum percentage grant and 100% grant for people in receipt of income replacement benefits.

Description of any circumstances in which an applicant's contribution may be assessed as being less than 20%, thereby leading to a higher award than the prescribed minimum of 80% (for applicants not eligible for 100% grant).

Application process for financial assistance

A detailed breakdown of the process as covered by sections 74-89 of the Act, allowing for appropriate input from the social work department, and, in the case of any works thought to be adding value to the property, input from a valuer.

Appeals process

Details of process to be followed by applicants aggrieved at the outcome of their request for financial assistance.

When assistance might be withdrawn

The circumstances in which offers of financial assistance may be postponed or not made at all, and those in which the social work department may alternatively assist.

Assistance with reinstatement

Details of the mandatory assistance which will be made available in relation to the reinstatement of property after adaptation. Specific reference should be made to any circumstances in which financial assistance with the cost of reinstatement will be available. Authorities should be mindful of their duty to provide mandatory assistance in respect of reinstatements and where they offer financial assistance, they must do so within a reasonable period of time of an application.

Q. Is this model framework helpful? Are there further headings that could be included within this model framework?

Annex 1: Suggested checklist of standard items of property maintenance

Annual maintenance

• Servicing of gas appliances and central heating systems
• Cleaning out of gutters, down pipes and gullies and checking for leaks
• Checking ground floor air bricks are not blocked or covered affecting ventilation
• Trimming back trees, hedges, bushes etc. (avoids possible damage to overhead services, blockage of air grates etc., also can be a security issue) Keeping ivy and climbing plants away from walls as they can damage render or brickwork and retain moisture.

Periodic maintenance

• Re-decoration to exterior of property
• Checking electrical installation for deterioration and compliance with latest regulations.

Initial one-off checks

• Home security to ensure adequate locks and catches on all doors and windows including safety catch limiters on windows
• Initial safety checks on gas and electric services and fixed appliances to ensure wiring and appliances are safe and that there is adequate ventilation to comply with gas regulations
• Ensuring adequate insulation/lagging to all pipe work and water tanks to avoid burst pipes etc
• Ensuring adequate insulation to roof space to provide optimum efficiency of heating system. Ensuring that insulation leaves gap at eaves for ventilation of roof space
• Checking for draught exclusion to doors and windows
• Ensuring external paving or garden areas abutting building have not been built up above level of damp proof course
• Checking where stopcocks are fitted in case of emergency
• Checking smoke detectors installed and batteries working (if not mains wired).

Continual/ongoing checks

• Visual inspection of property externally to identify any damage (especially roofs and chimneys after severe weather such as storms) or items of concern (such as overflow from water storage tank)
• Regular inspection of flat felt roofs which have a limited life and are prone to damage from being walked on as well as from wear and tear
• Checking for rotting timbers to doors and windows and condition of mastic pointing to frames
• Visual inspection internally to identify leaks, water penetration, dripping taps etc.
• Checking for any visible problems outwith the property (such as blocked or partly blocked drains).

Annex 2: Examples of organisations delivering specialist advice and assistance

Ownership Options in Scotland

A non-profit making charity which specialises in home ownership issues affecting disabled people in Scotland. Services provided include:

• Advice and information about homebuying for disabled people and their carers
• Co-ordinating individual homebuying projects including raising money to buy a property or to design a property from scratch
• Lobbying to remove the financial, legal and practical barriers to ownership
• Providing training and consultancy for the public and private sectors.

Glasgow Centre for Inclusive Living

A community business (registered as charity and company limited by guarantee) run by disabled people, working for and with disabled people. GCIL provide a variety of services that directly support disabled people in Glasgow. Their work is based on the principle that the user chooses the support they want rather than having to take what is offered to them. Support can include information, advice and assistance relating to

• Accessible Housing Solutions providing an innovative housing information, advice and advocacy service to help disabled people in housing need to obtain suitable housing
• Promoting inclusive living by assisting disabled people to challenge barriers and make informed choices.

Care and Repair

Care and Repair services offer independent advice and assistance to help homeowners repair, improve or adapt their homes so that they can live in comfort and safety at home.

The service is generally available to owner-occupiers, private tenants and crofters who are aged 60 or over or who have a disability. Care and Repair is a home-based and personalised service, which seeks to put the individual in control of decisions. Services usually involve the following:

• Personal, financial and technical support to people facing the difficult task of repairing, improving or adapting a home which is no longer suitable to the person's needs
• The provision of advice and information, as well as practical assistance with grant applications, co-ordinating repairs and carrying out minor repairs
• Staff visit people at home and assist them through the entire process of deciding what work is to be done, arranging the finance and organising the building work
• Each case involves a different approach and often staff must cross disciplinary and departmental boundaries, working closely with health, housing and social work staff, to reach a solution for the client.

The building work is funded in a variety of ways, including local authority grants, benefits, equity release, home loans and charitable funds.

Annex 3: Overcoming barriers to carrying out repair

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